Broken: The Confirmation Process of Trump’s Unvetted Cabinet

Amidst growing interest in the interim security clearances given to Rob Porter, Jared Kushner, and other senior White House staff, it is worth widening the scope of inquiry.
This paper examines whether the Trump Administration successfully pressured the FBI and Senate into inadequate and overly hasty background checks on Cabinet officers. The paper details the breakdown in getting information to the FBI and Senate, and asks why that occurred.

Acknowledgements
The author thanks the team at CEPR and Brianne Gorod.
Introduction
Amidst growing interest in the interim security clearances given to Rob Porter, Jared Kushner, and
other senior White House staff, it is worth widening the scope of inquiry.

This paper examines whether the Trump Administration successfully pressured the FBI and Senate
into inadequate and overly hasty background checks on Cabinet officers. The paper details the
breakdown in getting information to the FBI and Senate, and asks why that occurred.

The FBI Background Check for Nominees has a
Long History
Since the presidency of Dwight Eisenhower, all nominees for Senate-confirmed positions have been
subject to intensive FBI background investigations. 1 Because the FBI’s investigative resources
complement Senate staff’s issue area expertise, their investigations are critical to the fulfillment of the
Senate’s constitutionally granted “advice and consent” role. 2

The seriousness with which these investigations have been taken is made clear by the early days of the
Obama presidency when Obama had to staff the government of a country fighting two wars amidst a
collapsing global economy.

At that time, President Obama’s nominations of Tim Geithner to head the Treasury Department and
Tom Daschle to run Health and Human Services (HHS) ran into significant and fatal problems,
respectively. In 2009, American Enterprise Institute’s Norm Ornstein complained that the unwitting
impact of those controversies was that it was not “going to be easy to push the FBI to move faster on
key nominees.” Indeed, what Ornstein was told by “insiders is that the opposite is true; the FBI,
unwilling to be the scapegoat if some problem emerges in a nominee’s background, is digging in its
heels and even lengthening the amount of time needed to finish the security checks." 3

Broken: The Confirmation Process of Trump’s Unvetted Cabinet 3
Contrary to the Trump Administration narrative that the FBI is part of a “Deep State” sympathetic
to Democrats and antagonistic to Trump, 4 there is reason to believe that the Trump Administration
successfully rushed the FBI background check process for Cabinet nominees amidst the chaos of the
Trump transition. 5

Recall that,

In the weeks after the election, Trump made a show of naming members of his Cabinet in rapid
succession, giving the impression that his transition was proceeding speedily, faster even than many
people expected after such a shocking result on November 8. But the slew of nominations obscured an
important detail: Trump’s team had done little or no vetting of those appointees before or immediately
after the election, as the Obama transition had done. Potential picks were rarely asked to submit
information for a standard FBI background check or financial documents needed for disclosure
requirements and an ethics agreement. That meant that a process that takes weeks or even months did
not begin until late November or December in some cases.[…] “With these billionaires, it’s going to
take a lot more time,” said Richard Painter, who served as the chief ethics lawyer in the Bush White
House from 2005 to 2007. 6

Typically, potential appointees begin assembling information well in advance of being nominated.
Indeed, Politico ran a long article in October of 2016 describing how many people who view
themselves as likely nominees prepare for a possible nomination by paying major DC law firms
$50,000–$100,000 to do opposition research on themselves and pull their finances and papers into
order even before the election is concluded. 7

However, given the chaos surrounding Trump’s transition and the unexpectedness of his victory, that
self-preparation didn’t occur. Recall that “days after the election, the transition took an unexpected
turn. New Jersey Governor Chris Christie, the transition chairman, was removed from his position
and replaced by the vice president-elect.” 8

The upshot? Trump’s chaotic transition started over from scratch in mid-November, discarding the
months of work that had already occurred. Such a late reboot ought to have led to a conspicuously

4 For evidence to the contrary, see, e.g., Barrett (2016) and Ackerman (2018). It is deeply unlikely that the view of the FBI as either
anti-Trump or pro-Clinton is accurate.
5 See, e.g., “Trump replaces Christie with Pence as head of transition team amid bumpy first steps to the White House” (Bierman
and Memoli 2016); “‘It went off the rails almost immediately’: How Trump’s messy transition led to a chaotic presidency” (Balz
2017).
6 Berman (2018).
7 Wheaton, Cook, and Restuccia (2016).
8 Balz (2017).

Broken: The Confirmation Process of Trump’s Unvetted Cabinet 4
slow confirmation process for his most senior nominees, but due to the muscle of Trump and
McConnell, that largely did not occur. 9 Instead, Senate committee hearings began in a rush in January,
two months after the Trump transition started over from scratch.

In a piece titled, “GOP jams Senate Dems with confirmation blitz,” Politico noted on January 5, 2017
that, “Senate Republicans have heard the Democrats’ demands for a deliberate confirmation process
for Donald Trump’s nominees. But they don’t care.” 10 Politico went on to note that, as with then-
Minority Leader McConnell in 2009, Minority Leader Schumer had requested “tax returns for several
nominees and for the standard FBI background checks and Office of Government Ethics procedures
to be completed before proceeding with the confirmation process.” However, the process was moved
forward irrespective of whether such processes would, in fact, be completed in time. 11

Trump Transition Sought to Minimize Public
Servant Scrutiny of its Nominees
Walter M. Shaub, Jr., then-director of the Office of Government Ethics, expressed public concerns
during the transition about the pressure from the incoming Trump Administration to rush the
confirmation process without adequate vetting. The Washington Post noted that Shaub, “[a] top ethics
official,” was warning “that plans to confirm Donald Trump’s top Cabinet choices before background
examinations are complete are unprecedented and have overwhelmed government investigators
responsible for the reviews.” 12

Those warnings were picked up on by Senate Democrats, but unheeded by the Senate’s Republican
majority, despite Shaub’s pleas against allowing nominations to go forward without completed ethics
reviews. Shaub added, “I am not aware of any occasion in the four decades since OGE was established
when the Senate held a confirmation hearing before the nominee had completed the ethics review
process.” 13

While Shaub’s complaints received a degree of attention, the same Washington Post piece noted that
while “Sessions’s FBI check is complete[…]other nominees have yet to complete all of the

There is good reason to believe that the FBI contributions to the Senate was rushed in light of issues
that arose with the incompleteness of information known to the Senate (and thus presumably to the
FBI) during the confirmation hearings of three Cabinet Officers: Wilbur Ross, Steven Mnuchin, and
Jeff Sessions.

While Shaub was decrying the rush in light of the botched transition and delays in nominees providing
basic paperwork, Trump himself was offering “repeated complaints” “that Democrats are slow-
walking his administration with a historic delay in approving his Cabinet.” Indeed, “Senate Majority
Leader Mitch McConnell declared that it's the slowest confirmation process since the presidency of
George Washington.” 15

In the end, Trump and McConnell got what they wanted — relatively prompt confirmation of
individuals despite the nominees having been far from open and transparent with the Senate about
their finances and their past actions.

Wilbur Ross
The New York Post reported in February of 2017 that “Wilbur Ross failed to disclose to a Senate
committee during his confirmation hearing last month that he is being sued by a former business
partner who claims he was cheated out of profits from Ross’ hedge funds.” 16

Despite the fact that “Ross was asked by a Senate committee to list all lawsuits filed against him,”
Ross never disclosed an active 2015 breach-of-contract lawsuit filed by the “former partner, David
Storper, who was the senior managing director at WL Ross.” 17

Ross’ omission not only goes to his personal honesty or competence, but it also goes to the
insufficiency of the FBI’s scrutiny. One would expect that public records searches by the FBI would
have identified the lawsuit in question. Senate staff did independently find and question Ross about

14 Ibid.
15 Everett (2017).
16 Kosman (2017).
17 Ibid.

Broken: The Confirmation Process of Trump’s Unvetted Cabinet 6
another omitted “lawsuit filed against him — by shareholders of a South Carolina company who
claimed they were victims of double-dealing and a breach of fiduciary duty.” 18 Ross and his firm
eventually settled that case in 2014 for a significant sum — $81 million. 19

It is common to talk to litigation adversaries in order to better understand the potential vulnerabilities
of the subject of a background investigation. It is not clear, but seems doubtful, that the FBI knew
about these two lawsuits when investigating Ross. That is unfortunate, since knowledge of the
litigation would seem likely to have helped them develop investigative leads into questions about Ross’
integrity, character, and honesty.

Ross’ litigation exposure has remained relevant during his tenure in office, as he faces a significant
new lawsuit brought against him in November of 2017 by Storper. Now joined by two other former
Ross associates and managing directors, the second Storper lawsuit claims “the corporate entities
created to handle equity funds were improperly charged millions of dollars in fees. David H. Storper,
David Wax and Pamela K. Wilson allege that the firm wrongfully charged the entities at least $48
million in management fees.” 20

A better understanding of Ross’ litigation risks would have made clear that Ross faced an unusually
high probability of distracting litigation developing while he served in the Cabinet. Indeed, Ross may
have to testify in a July trial date in the first Storper lawsuit. 21

Being accused of lacking integrity by his former colleagues is perhaps not the most disturbing
revelation about Ross that the Senate did not know about when they confirmed him for the position
of Commerce Secretary. Due to the work of The International Consortium of Investigative Journalists
in revealing what became known as the Paradise Papers, 22 Ross’ previously secret business ties to
Russian President Vladimir V. Putin’s son-in-law are now clear. 23

If Mr. Ross stands to benefit, albeit indirectly, from a Russian firm controlled by members of Mr.
Putin’s inner circle, it poses a potential conflict with his role as the lead cabinet member on trade policy,
ethics experts said. Richard W. Painter, who served as chief ethics lawyer in the George W. Bush
White House and has emerged as a frequent critic of the Trump administration, said that while Mr.
Ross’s continued investment in Navigator would not violate any laws, it created other ethical concerns.

Broken: The Confirmation Process of Trump’s Unvetted Cabinet 7
“Apart from those legal issues,” Mr. Painter said, “I’d be very concerned that someone in the US
government was making money from dealing with the Russians.” 24

Painter’s alarm was not idiosyncratic.

Analysts said the arrangement was troubling. Daniel Fried, an assistant secretary of state for
European and Eurasian affairs under George W Bush, said Ross’s connection to “cronies of Putin”
threatened to undermine US sanctions. “I don’t understand why anybody would decide to maintain
this kind of relationship going into a senior government position,” he said. “What is he thinking?” 25

The Senate did not ask Ross about his connection to Putin’s family during his confirmation hearing
because, as noted by Painter, “Ross had not made absolutely clear in his paperwork that he was
retaining a stake in Navigator. ‘It is very difficult to figure out from the financial disclosure,’ said
Painter. ‘He should have sold off any and all interests.’” 26 Navigator Holdings Ltd. is an international
shipping company and claims to have the world’s largest fleet of liquefied gas carriers.

While it is possible that the FBI was aware that some of Ross’ shell holdings brought him into such
close connection with Putin, it seems unlikely that they would have failed to advise the Senate that
someone nominated for a position within the presidential line of succession remained a business
partner of Putin’s son-in-law had they been aware of that fact.

That’s especially true, in light of the fact that the Commerce Secretary sits on Committee on Foreign
Investment in United States 27 and “oversees ocean and coastal navigation.” 28 Ross’ conflicts-of
interest, loyalty, integrity, and foreign entanglements are all germane to American national security.

Senate Democrats have asked Ross a series of as yet unanswered questions concerning a distinct set
of troubling ties to Russia that were publicly known. Senators have “sent a third letter to Ross with
more questions, including whether Ross had ever done business with companies that were under US
sanctions,” but as with previous letters, “Ross has said the White House has refused to allow him to
respond to the queries.” 29

Broken: The Confirmation Process of Trump’s Unvetted Cabinet 8
It is disturbing to realize the perfunctory nature of scrutiny Ross appears to have received from the
FBI, as well as Ross’ non-responsiveness about concerns raised both before and after his confirmation.
The premise of conflicts-of-interest laws is that the public is entitled to understand that public servants
have as their top priority the public interest, not self-interest. Senators have not been able to rely on
either the FBI or Ross’ cooperation to learn information that goes to Ross’ self-interest and how it
might conflict with the national interest.

Given Ross’ inadequate vetting, the American public should not presume that just because Ross
received Senate confirmation, he has the requisite integrity and loyalty to the country we expect of
someone in a serious job within the presidential line of succession. 30

Steven Mnuchin
Filling out copious forms is an important part of the background check. The FBI needs to know about
the finances and litigation history of candidates for the high office they are charged with investigating
in order to understand their vulnerabilities. That is why it is disturbing that Steven T. Mnuchin, then-
President-elect Donald J. Trump’s choice to be Treasury secretary, “failed to disclose nearly $100
million of his assets on Senate Finance Committee disclosure documents and forgot to mention his
role as a director of an investment fund located in a tax haven.” 31

The disclosure only “came hours before Mr. Mnuchin[…]began testifying.” 32 That makes it
inconceivable that the FBI was given enough time to look into the investment and what it did or not
suggest about Mnuchin’s business network. Mnuchin had omitted “several additional financial assets,
including $95 million worth of real estate — a co-op in New York City, a residence in Southampton,
NY, a residence in Los Angeles, CA, and $15 million in real estate holdings in Mexico.” 33 Additionally,
“Mr. Mnuchin also initially failed to disclose that he is the director of Dune Capital International, an
investment fund incorporated in the Cayman Islands, along with management posts in seven other
investment funds. And he belatedly disclosed that his children own nearly $1 million in artwork.” 34

Given that Mnuchin’s honesty was the subject of the inquiry, it is worrisome that the FBI had no
opportunity to assess the credibility of Mnuchin’s justification for his omissions, which is that they

Broken: The Confirmation Process of Trump’s Unvetted Cabinet 9
came about “due to a misunderstanding of the questionnaire” and “I assure you that these forms were
very complicated.” 35 The FBI could have assessed whether Senator Robert Menendez was correct
when he argued that, “It doesn’t take a rocket scientist to understand the words ‘list all positions.’” 36

Questions about Mnuchin’s integrity and associations are not merely an issue for domestic economic
policy. As the Treasury Department’s website notes,

The Treasury Department also performs a critical and far-reaching role in enhancing national security
by implementing economic sanctions against foreign threats to the US, identifying and targeting the
financial support networks of national security threats, and improving the safeguards of our financial
systems. Treasury's Office of International Affairs works on a wide range of economic issues. 37

The FBI ought to have been given adequate time to assess the scope of Mnuchin’s holdings, his
business network, and his general credibility before providing the Senate with a final assessment of
his worthiness to hold such a senior national security position. We do not know what additional
investigative leads the FBI would have found with full visibility into Mnuchin’s holdings. Unless the
FBI is asked to reopen its background check, we’ll never know for sure.

It is also worth finding out how and why Mnuchin’s confirmation hearing was held on such an
accelerated timeline despite his failure to provide complete records in advance of the hearing. The
Senate ought to investigate what reforms are needed to ensure that the confirmation process is never
so rushed again.

Jeff Sessions
The Justice Department has released part of Sessions' SF 86 form, the detailed form which includes
questions concerning “any contact with a foreign government, its establishment (such as embassy,
consulate, agency, military service, intelligence or security service, etc.) or its representatives, whether
inside or outside the US?" 38

Broken: The Confirmation Process of Trump’s Unvetted Cabinet 10
Not only did Sessions claim, wrongly, “No” such contact on his SF-86, he did not disclose his contacts
with the Russian Ambassador at his Senate confirmation hearing. 39

Given the ongoing investigation into potential Trump campaign–Russian collusion and presumably
perpetual FBI constant counter-espionage surveillance of the Russian Ambassador, it seems likely that
the FBI was aware that Sessions’ SF-86 was untrue. Given the enormous national security obligations
of the Justice Department, and the sensitivity of dishonesty about ties to Russia, it is disturbing that
the Senate was not informed of Sessions’ false answers before they voted to confirm him. The Senate
should not have had to wait until a Washington Post story published in March 2017 to learn about
Sessions’ communications with the Russian government during the 2016 presidential campaign. 40

Obviously, there was a breakdown in information getting to the Senate, but what is not clear is why
that occurred. The seriousness of the FBI’s investigation into potential Trump–Russian cheating in
the 2016 election was not necessarily known to all FBI staff in January 2017. However, relevant
information was almost certainly known by some within the FBI. Either the FBI failed to share that
information with the Senate to acquiesce to Trump’s desire for a hasty screening of Sessions, or
because of information silos within the agency. Nevertheless, the FBI let down the Senate by not
adequately screening Jeff Sessions.

Questions about whether Russians may have been able to blackmail Sessions by publicizing the fact
that at best he had been “forgetful” in his Senate confirmation hearings are made even more relevant
by the fact that the Justice Department is a leading component of America’s counterintelligence
infrastructure. 41 Jeff Sessions was confirmed as Attorney General with the Russian government
holding knowledge of meetings he had with them that he had denied to the Senate and on his SF-86
— and lying to the Senate or on an SF-86 is a criminal offense. 42 That vulnerability to blackmail was
a major national security risk.

Broken: The Confirmation Process of Trump’s Unvetted Cabinet 11
Conclusion
Our national security depends on the senior figures in our government being of undisputed integrity
and loyalty to the country. The FBI’s background check and Senate confirmation process are supposed
to ensure confidence that our national security is uncompromised.

The Trump Administration’s chaotic transition, followed by their angry insistence on confirmations
moving too quickly, created enormous pressure on the FBI and the Senate to move with excessive
haste. Senate Majority Leader Mitch McConnell was all too eager to acquiesce to the Trump
Administration’s unreasonable requests.

The FBI and the Senate majority bent to pressure exerted by Trump to rush the confirmation process.
As a result of the Trump Administration’s successful push for haste, the FBI conducted its
investigations into Trump’s cabinet without the benefit of accurate financial disclosures and SF-86s
from Ross, Mnuchin, and Sessions.

What other information was kept from the FBI by these three individuals or other Administration
officials is unclear. What is clear, however, is that we should not presume that all significant
investigations that the FBI ought to have undertaken into Trump’s team actually occurred within the
narrow window between nomination and confirmation.

There are ongoing questions about the integrity of Ross, Mnuchin, and Sessions, and additional
questions about where Ross’ personal loyalties lie. Now that Trump White House security clearance
decisions are being subjected to scrutiny, we should also reexamine whether other members of
Trump’s Senate-confirmed Cabinet have been properly vetted and can be trusted to act with integrity
and in the nation’s interest.

Broken: The Confirmation Process of Trump’s Unvetted Cabinet 12
Policy Recommendations
To restore confidence, these actions and norms should be undertaken and implemented:

1.) In the short run, America cannot presume that all significant investigations that the FBI ought
to have undertaken into Trump’s team actually occurred within the narrow window between
nomination and confirmation. The Inspector General in each agency should review the files
of the FBI and OPM for each member of Trump’s Cabinet and direct investigation into each
unanswered question. At the end of that process, the Inspector General should share a report
with the relevant Senate Committee’s Chair and Ranking Member.

2.) The Senate ought to investigate what reforms are needed to ensure that the confirmation
process is never so rushed again. Such reforms would include, at a minimum, guaranteeing
that Cabinet officer scrutiny meets the minimum standard of rigor to accord an employee a
full Top Secret clearance.

3.) If the business ties of Wilbur Ross, Steven Mnuchin, and other Trump Administration officials
are simply too extensive and opaque for timely review, the implication should not be that they
must be confirmed in order to acquiesce to the President’s wishes. Rather, it should be
understood that rich people who, for example, conduct business through offshore shell
companies designed to minimize legal and tax liability, are not confirmable.

US Department of the Treasury. 2018. “International.” Washington, DC: US Department of the
Treasury, www.treasury.gov/resource-center/international/Pages/default.aspx.

US Department of the Treasury. 2010. “Composition of CFIUS.” Washington, DC: US Department
of the Treasury, 1 Dec., www.treasury.gov/resource-center/international/foreign-
investment/Pages/cfius-members.aspx.